BILL NUMBER: AB 2472	CHAPTERED  09/19/00

	CHAPTER   531
	FILED WITH SECRETARY OF STATE   SEPTEMBER 19, 2000
	APPROVED BY GOVERNOR   SEPTEMBER 18, 2000
	PASSED THE ASSEMBLY   AUGUST 31, 2000
	PASSED THE SENATE   AUGUST 29, 2000
	AMENDED IN SENATE   AUGUST 25, 2000
	AMENDED IN ASSEMBLY   MAY 26, 2000
	AMENDED IN ASSEMBLY   APRIL 10, 2000

INTRODUCED BY   Assembly Member Romero
   (Coauthors:  Assembly Members Keeley and Longville)
   (Coauthor:  Senator Solis)

                        FEBRUARY 24, 2000

   An act to add Article 5 (commencing with Section 44110) to Chapter
1 of Part 25 of, and to add Article 6 (commencing with Section
87160) to Chapter 1 of Part 51 of, the Education Code, relating to
public school employees.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 2472, Romero.  Public school employees:  disclosure of improper
governmental activities.
   Under the California Whistleblower Protection Act, the State
Auditor is authorized to conduct an investigative audit upon
receiving confirmation that an employee or state agency, as defined,
has engaged in an improper governmental activity.  The act prohibits
an employee from using his or her official authority or influence to
intimidate, threaten, coerce, or command any person in order to
interfere with that person's right to make a disclosure under the
act.  The act protects employees who, among other things, make
disclosures to anyone of information that may evidence an improper
governmental activity, refusal to obey an illegal order, or any
condition that may significantly threaten the health or safety of
employees or the public if the disclosure is made for the purpose of
remedying the condition.
   The act also provides that a state employee who files a written
complaint with his or her supervisor, manager, or the appointing
power alleging actual or attempted acts of reprisal, retaliation,
threats, coercion, or similar improper acts because he or she has
made a protected disclosure under the act, may also file a copy of
the written complaint with the State Personnel Board, as specified.
Any person who engages in the above-specified acts is guilty of a
misdemeanor and subject to a $10,000 fine, and is also subject to
civil liability, as specified, except for any action or inaction that
is justified on the basis of evidence separate and apart from the
fact that the person has made a protected disclosure.
   This bill would enact the Reporting by School Employees of
Improper Governmental Activities Act and the Reporting by Community
College Employees of Improper Governmental Activities Act which would
enact provisions similar to the California Whistleblower Protection
Act applicable to employees of any public school employer, as
defined, and would add provisions by which a public school employee
is authorized to file a written complaint with the local law
enforcement agency, as specified, alleging acts or attempted acts of
reprisal, retaliation, threats, coercion, or similar improper acts.
By expanding the scope of an existing crime, the bill would create a
state-mandated local program.
  The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state.  Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Article 5 (commencing with Section 44110) is added to
Chapter 1 of Part 25 of the Education Code, to read:

      Article 5.  Reporting by School Employees of Improper
Governmental Activities

   44110.  This article shall be known and may be referred to as the
Reporting by School Employees of Improper Governmental Activities
Act.
   44111.  It is the intent of the Legislature that school employees
and other persons disclose, to the extent not expressly prohibited by
law, improper governmental activities.
   44112.  For the purposes of this article, the following terms have
the following meanings:
   (a) "Employee" means a public school employee as defined in
subdivision (j) of Section 3540.1 of the Government Code.
   (b) "Illegal order" means any directive to violate or assist in
violating a federal, state, or local law, rule, or regulation or an
order to work or cause others to work in conditions outside of their
line of duty that would unreasonably threaten the health or safety of
employees or the public.
   (c) "Improper governmental activity" means an activity by a public
school agency or by an employee that is undertaken in the
performance of the employee's official duties, whether or not that
activity is within the scope of his or her employment, and that meets
either of the following descriptions:
   (1) The activity violates a state or federal law or regulation,
including, but not limited to, corruption, malfeasance, bribery,
theft of government property, fraudulent claims, fraud, coercion,
conversion, malicious prosecution, misuse of government property, or
willful omission to perform duty.
   (2) The activity is economically wasteful or involves gross
misconduct, incompetency, or inefficiency.
   (d) "Person" means any individual, corporation, trust,
association, any state or local government, or any agency or
instrumentality of any of the foregoing.
   (e) "Protected disclosure" means a good faith communication that
discloses or demonstrates an intention to disclose information that
may evidence either of the following:
   (1) An improper governmental activity.
   (2) Any condition that may significantly threaten the health or
safety of employees or the public if the disclosure or intention to
disclose was made for the purpose of remedying that condition.
   (f) "Public school employer" has the same meaning as in
subdivision (k) of Section 3540.1 of the Government Code.
   44113.  (a) An employee may not directly or indirectly use or
attempt to use the official authority or influence of the employee
for the purpose of intimidating, threatening, coercing, commanding,
or attempting to intimidate, threaten, coerce, or command any person
for the purpose of interfering with the right of that person to
disclose to an official agent matters within the scope of this
article.
   (b) For the purpose of subdivision (a), "use of official authority
or influence" includes promising to confer or conferring any
benefit; affecting or threatening to affect any reprisal; or taking,
directing others to take, recommending, processing, or approving any
personnel action, including, but not limited to appointment,
promotion, transfer, assignment, performance evaluation, suspension,
or other disciplinary action.
   (c) For the purpose of subdivision (a), "official agent" includes
a school administrator, member of the governing board of a school
district or county board of education, county superintendent of
schools, or the Superintendent of  Public Instruction.
   (d) An employee who violates subdivision (a) may be liable in an
action for civil damages brought against the employee by the offended
party.
   (e) Nothing in this section shall be construed to authorize an
individual to disclose information otherwise prohibited by or under
law.
   44114.  (a) A public school employee or applicant for employment
with a public school employer who files a written complaint with his
or her supervisor, a school administrator, or the public school
employer alleging actual or attempted acts of reprisal, retaliation,
threats, coercion, or similar improper acts prohibited by Section
44113 for having disclosed improper governmental activities or for
refusing to obey an illegal order may also file a copy of the written
complaint  with the local law enforcement agency together with a
sworn statement that the contents of the written complaint are true,
or are believed by the affiant to be true, under penalty of  perjury.
  The complaint filed with the local law enforcement agency shall be
filed within 12 months of the most recent act of reprisal  that is
the subject of the complaint.
   (b) A person who intentionally engages in acts of reprisal,
retaliation, threats, coercion, or similar acts against a public
school employee or applicant for employment with a public school
employer for having made a protected disclosure is subject to a fine
not to exceed ten thousand dollars ($10,000) and imprisonment in the
county jail for a period not to exceed one year.  Any public school
employee, officer, or administrator who intentionally engages in that
conduct shall also be subject to discipline by the public school
employer.  If no adverse action is instituted by the public school
employer, and it is determined that there is reasonable cause to
believe that an act of reprisal, retaliation, threats, coercion, or
similar acts prohibited by Section 44113, the local law enforcement
agency may report the nature and details of the activity to the
governing board of the school district or county board of education,
as appropriate.
   (c) In addition to all other penalties provided by law, a person
who intentionally engages in acts of reprisal, retaliation, threats,
coercion, or similar acts against a public school employee or
applicant for employment with a public school employer for having
made a protected disclosure shall be liable in an action for damages
brought against him or her by the injured party.  Punitive damages
may be awarded by the court where the acts of the offending party are
proven to be malicious.  Where liability has been established, the
injured party shall also be entitled to reasonable attorney's fees as
provided by law.  However, an action for damages shall not be
available to the injured party unless the injured party has first
filed a complaint with the local law enforcement agency.
   (d) This section is not intended to prevent a public school
employer, school administrator, or supervisor from taking, failing to
take, directing others to take, recommending, or approving a
personnel action with respect to a public school employee or
applicant for employment with a public school employer if the public
school employer, school administrator, or supervisor reasonably
believes the action or inaction is justified on the basis of evidence
separate and apart from the fact that the person has made a
protected disclosure as defined in subdivision (e) of Section 44112.

   (e) In any civil action or administrative proceeding, once it has
been demonstrated by a preponderance of evidence that an activity
protected by this article was a contributing factor in the alleged
retaliation against a former, current, or prospective public school
employee, the burden of proof shall be on the supervisor, school
administrator, or public school employer to demonstrate by clear and
convincing evidence that the alleged action would have occurred for
legitimate, independent reasons even if the public school employee
had not engaged in protected disclosures or refused an illegal order.
  If the supervisor, school administrator, or public school employer
fails to meet this burden of proof in an adverse action against the
public school employee in any administrative review, challenge, or
adjudication in which retaliation has been demonstrated to be a
contributing factor, the public school employee shall have a complete
affirmative defense in the adverse action.
   (f) Nothing in this article shall be deemed to diminish the
rights, privileges, or remedies of a public school employee under any
other federal or state law or under an employment contract or
collective bargaining agreement.
   (g) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1
of the Government Code, the memorandum of understanding shall be
controlling without further legislative action.
  SEC. 2.  Article 6 (commencing with Section 87160) is added to
Chapter 1 of Part 51 of the Education Code, to read:

      Article 6.  Reporting by Community College Employees of
Improper Governmental Activities

   87160. This article shall be known and may be referred to as the
Reporting by Community College Employees of Improper Governmental
Activities Act.
   87161. It is the intent of the Legislature that community college
employees and other persons disclose, to the extent not expressly
prohibited by law, improper governmental activities.
   87162. For the purposes of this article, the following terms have
the following meanings:
   (a) "Employee" means a public school employee as defined in
subdivision (j) of Section 3540.1 of the Government Code as construed
to include community college employees.
   (b) "Illegal order" means any directive to violate or assist in
violating a federal, state, or local law, rule, or regulation or an
order to work or cause others to work in conditions outside of their
line of duty that would unreasonably threaten the health or safety of
employees or the public.
   (c) "Improper governmental activity" means an activity by a
community college or by an employee that is undertaken in the
performance of the employee's official duties, whether or not that
activity is within the scope of his or her employment, and that meets
either of the following descriptions:
   (1) The activity violates a state or federal law or regulation,
including, but not limited to, corruption, malfeasance, bribery,
theft of government property, fraudulent claims, fraud, coercion,
conversion, malicious prosecution, misuse of government property, or
willful omission to perform duty.
   (2) The activity is economically wasteful or involves gross
misconduct, incompetency, or inefficiency.
   (d) "Person" means any individual, corporation, trust,
association, any state or local government, or any agency or
instrumentality of any of the foregoing.
   (e) "Protected disclosure" means a good faith communication that
discloses or demonstrates an intention to disclose information that
may evidence either of the following:
   (1) An improper governmental activity.
   (2) Any condition that may significantly threaten the health or
safety of employees or the public if the disclosure or intention to
disclose was made for the purpose of remedying that condition.
   (f) "Public school employer" has the same meaning as in
subdivision (k) of Section 3540.1 of the Government Code as construed
to include community college districts.
   87163.  (a) An employee may not directly or indirectly use or
attempt to use the official authority or influence of the employee
for the purpose of intimidating, threatening, coercing, commanding,
or attempting to intimidate, threaten, coerce, or command any person
for the purpose of interfering with the right of that person to
disclose to an official agent matters within the scope of this
article.
   (b) For the purpose of subdivision (a), "use of official authority
or influence" includes promising to confer or conferring any
benefit; affecting or threatening to affect any reprisal; or taking,
directing others to take, recommending, processing, or approving any
personnel action, including, but not limited to appointment,
promotion, transfer, assignment, performance evaluation, suspension,
or other disciplinary action.
   (c) For the purpose of subdivision (a), "official agent" includes
a community college administrator, member of the governing board of a
community college district, or the Chancellor of the California
Community Colleges.
   (d) An employee who violates subdivision (a) may be liable in an
action for civil damages brought against the employee by the offended
party.
   (e) Nothing in this section shall be construed to authorize an
individual to disclose information otherwise prohibited by or under
law.
   87164.  (a) An employee or applicant for employment with a public
school employer who files a written complaint with his or her
supervisor, a community college administrator, or the public school
employer alleging actual or attempted acts of reprisal, retaliation,
threats, coercion, or similar improper acts prohibited by Section
87163 for having disclosed improper governmental activities or for
refusing to obey an illegal order may also file a copy of the written
complaint with the  local law enforcement agency, together with a
sworn statement that the contents of the written complaint are true,
or are believed by the affiant to be true, under penalty of perjury.
The complaint filed with the local law enforcement agency shall be
filed within 12 months of the most recent act of reprisal that is the
subject of the complaint.
   (b) A person who intentionally engages in acts of reprisal,
retaliation, threats, coercion, or similar acts against an employee
or applicant for employment with a public school employer for having
made a protected disclosure is subject to a fine not to exceed ten
thousand dollars ($10,000) and imprisonment in the county jail for a
period not to exceed one year.  An employee, officer, or
administrator who intentionally engages in that conduct shall also be
subject to discipline by the public school employer.  If no adverse
action is instituted by the public school employer, and it is
determined that there is reasonable cause to believe that an act of
reprisal, retaliation, threats, coercion, or similar acts prohibited
by Section 87163, the local law enforcement agency may report the
nature and details of the activity to the governing board of the
community college district.
   (c) In addition to all other penalties provided by law, a person
who intentionally engages in acts of reprisal, retaliation, threats,
coercion, or similar acts against an employee or applicant for
employment with a public school employer for having made a protected
disclosure shall be liable in an action for damages brought against
him or her by the injured party.  Punitive damages may be awarded by
the court where the acts of the offending party are proven to be
malicious.  Where liability has been established, the injured party
shall also be entitled to reasonable attorney's fees as provided by
law.  However, an action for damages shall not be available to the
injured party unless the injured party has first filed a complaint
with the local law enforcement agency.
   (d) This section is not intended to prevent a public school
employer, school administrator, or supervisor from taking, failing to
take, directing others to take, recommending, or approving a
personnel action with respect to an employee or applicant for
employment with a public school employer if the public school
employer, school administrator, or supervisor reasonably believes an
action or inaction is justified on the basis of evidence separate and
apart from the fact that the person has made a protected disclosure
as defined in subdivision (e) of Section  87162.
   (e) In any civil action or administrative proceeding, once it has
been demonstrated by a preponderance of evidence that an activity
protected by this article was a contributing factor in the alleged
retaliation against a former, current, or prospective employee, the
burden of proof shall be on the supervisor, school administrator, or
public school employer to demonstrate by clear and convincing
evidence that the alleged action would have occurred for legitimate,
independent reasons even if the employee had not engaged in protected
disclosures or refused an illegal order.  If the supervisor, school
administrator, or public school employer fails to meet this burden of
proof in an adverse action against the employee in any
administrative review, challenge, or adjudication in which
retaliation has been demonstrated to be a contributing factor, the
employee shall have a complete affirmative defense in the adverse
action.
   (f) Nothing in this article shall be deemed to diminish the
rights, privileges, or remedies of an employee under any other
federal or state law or under an employment contract or collective
bargaining agreement.
   (g) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1
of the Government Code, the memorandum of understanding shall be
controlling without further legislative action.
  SEC. 3.  Nothing in this act is intended to supersede or limit the
application of the privilege of subdivision (b) of Section 47 of the
Civil Code to informants and proceedings conducted pursuant to
Article 3 (commencing with Section 8547) of Chapter 6.5 of Division 1
of Title 2 of the Government Code, as confirmed in Braun v. Bureau
of State Audits (1998) 67 Cal.App.4th 1382.
  SEC. 4.  No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
